When Black First Land First said‘boo’, Mkhwe­bane jumped

On Fe­bru­ary 28 the con­tro­ver­sial Black First Land First move­ment (BLF) wrote to pub­lic pro­tec­tor Bu­sisiwe Mkhwe­bane in what it de­scribed as an of­fi­cial sub­mis­sion to­wards her in­ves­ti­ga­tion into the apartheid-era bailout of Bankorp, later ac­quired by Absa.

“No tax had been re­quired for the gift to Bankorp/Absa, which in turn sug­gests that a con­sid­er­able loss in tax rev­enue has been in­curred — as huge as the gift it­self,” wrote BLF con­vener Andile Mngxi­tama.

Within hours, Mkhwe­bane asked a mem­ber of staff to “get us some in­for­ma­tion on the tax im­pli­ca­tions of the gift to Bankorp”.

Doc­u­ments now in the pub­lic do­main thanks to le­gal ac­tion against her sug­gest this was not the first time the pub­lic pro­tec­tor had re­acted to the BLF with un­seemly haste.

Mkhwe­bane met the BLF on Jan­uary 12 about the Absa mat­ter, a meet­ing she did not dis­close in her re­port. What hap­pened dur­ing that meet­ing is not known; it is among the meet­ings for which she has not pro­vided any records. How­ever, it is safe to as­sume that the mat­ter of crim­i­nal charges came up. “BLF rec­om­mends that, where ap­pli­ca­ble, those im­pli­cated in wrong­do­ing be sub­jected to crim­i­nal pros­e­cu­tions,” Mngxi­tama wrote in Fe­bru­ary.

The next day, hand­writ­ten notes show, Mkhwe­bane met with a “war­rant of­fi­cer” of the South African Po­lice Ser­vice, who de­clined to tell the Mail & Guardian what branch of the po­lice he works for. “Open a case,” reads one line of the notes.

Mkhwe­bane’s ap­proach to and re­la­tion­ship with the BLF is in sharp con­trast to that of her pre­de­ces­sor, Thuli Madon­sela, who once pointed out to the BLF that, as it was nei­ther a com­plainant in the mat­ter nor rep­re­sented in Par­lia­ment, she was deal­ing with it only “out of cour­tesy”. The BLF later in­vaded Madon­sela’s of­fices in Pre­to­ria and took staff mem­bers hostage.

The treat­ment of the BLF is also very dif­fer­ent from that meted out to the Re­serve Bank (the con­sti­tu­tional man­date of which Mkhwe­bane or­dered changed) and Absa (which she found had il­le­gally re­ceived R1.125-bil­lion in mis­ap­pro­pri­ated funds). Both banks have told the high court in Pre­to­ria that Mkhwe­bane did not give them a fair hear­ing dur­ing her in­ves­ti­ga­tion.

Absa chief ex­ec­u­tive Maria Ramos said in an af­fi­davit that she had spo­ken to Mkhwe­bane by phone, also on Jan­uary 12. “I specif­i­cally in­vited her to con­tinue en­gag­ing with Absa in re­la­tion to her in­ves­ti­ga­tion,” Ramos said. “The pub­lic pro­tec­tor did not take up this in­vi­ta­tion.”

The State Se­cu­rity Agency (SSA) also seemed to have made an un­usual — and pre­vi­ously undis­closed — amount of in­put into Mkhwe­bane’s work. In a state­ment on Thurs­day, her of­fice said she had met the spy agency to in­quire about its con­tract with Bri­tish pri­vate in­tel­li­gence com­pany Ciex and “the man­age­ment process of that con­tract by SSA”, re­fer­ring to a meet­ing on March 3.

But a one-page hand­writ­ten note from a meet­ing on June 6 is headed: “Meet­ing with SSA — Econ­o­mist”. The note refers to “in­de­pen­dence” and align­ing “with con­sti­tu­tional obli­ga­tions”.

Mkhwe­bane met with the pres­i­dency the fol­low­ing day. Two weeks later, she or­dered Par­lia­ment to change the Con­sti­tu­tion to make “so­cioe­co­nomic well­be­ing” rather than in­fla­tion tar­get­ing the main task of the Re­serve Bank.

Mkhwe­bane’s of­fice on Thurs­day re­sponded to de­tailed ques­tions with a short state­ment. It read, in full: “Re­gard­ing the con­tents of the record, this forms part of the mat­ter still pend­ing in court and is there­fore sub judice. The pub­lic pro­tec­tor does not in­tend to lit­i­gate through the me­dia and will ad­dress all is­sues raised by [the Re­serve Bank] in her an­swer­ing af­fi­davit due to be filed on Oc­to­ber 23.” —